Abortion was criminalised in Ireland by sections 58 and 59 of the Offences against the Person Act 1861. During the 1970s and early 1980s, a number of judicial dicta suggested that the Constitution implicitly protected the right to life of the unborn. In 1983, the people approved the Eighth Amendment to the Constitution, inserting Article 40.3.3.

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

In Attorney General v X, a majority of the Supreme Court held that an abortion would be permissible if it was established as a matter of probability that there was a real and substantial risk to the life, as distinct from the health, of the mother, which could only be avoided by the termination of her pregnancy. The Court then held that a pregnant girl who was suicidal was allowed to have an abortion in Ireland. This constitutional test was written into a statutory framework in the Protection of Life in Pregnancy Act 2013. In 1992, the people passed two constitutional amendments to provide that Article 40.3.3° did not limit the freedom of women to travel for abortion services or to receive information about abortion services.

Following the General Election of 2016, the Oireachtas (National Parliament) established a Citizens’ Assembly to consider and make such recommendations as it saw fit in relation to the Eighth Amendment. The Assembly consisted of 99 citizens randomly selected by a polling company to be representative of the population at large, and was chaired by a Supreme Court judge, supported by a secretariat and expert advisory group. Over 13,000 submissions were made by members of the public and advocacy groups.

Over four weekends from November 2016 to March 2017, the Assembly heard presentations on the ethical, legal and medical implications of Article 40.3.3°, as well as from advocacy groups and the (recorded) voices of women who had personal experience of Ireland’s abortion law and had different views on whether reform was needed.

The issues that confronted the Assembly members were difficult—medically, emotionally, legally, and morally. Any recommendations, if they were to be robust within public debate, had to grapple with both the question of when abortion services should be lawful in Ireland and whether that law should be contained primarily in the Constitution or left to the discretion of the Oireachtas. In this latter regard, the citizens undertook competence-building exercises that allowed them to explore the reasons for and against the constitutional protection of rights, including the relative empowerment of politicians or courts.

For a number of years, pro-choice activists had coalesced around a campaign for repeal of the Eighth Amendment. However, it was not entirely clear what repeal of the Eighth Amendment would achieve. In the immediate term, it would simply leave in place the Protection of Life in Pregnancy Act 2013. The real question was what freedom the Oireachtas would acquire to amend that Act. Most likely, repeal would leave the Oireachtas free to legislate in relation to services for the termination of pregnancy. However, it was also arguable that it would cause a return to the pre-1983 position in which an implicit right to life of the unborn was protected. It was also argued that repeal would eliminate all protection of that right but instead allow the emergence of a constitutional right of women to choose a termination of pregnancy, constraining the competence of the Oireachtas from the opposite direction. The citizens were presented with this analysis on the fourth weekend.

On the fifth weekend, the Assembly considered and approved, subject to a number of changes, a sequenced ballot paper. They first, by a majority of 79 to 12, decided that Article 40.3.3° should not be retained in full. They then, by a majority of 50 to 39, recommended that Article 40.3.3° should be replaced rather than repealed. However, in the third ballot they decided, by a majority of 51 to 38, that Article 40.3.3° should be replaced with a constitutional provision that explicitly authorised the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn, and any rights of the woman. This was a clear decision that the Oireachtas should have competence to legislate in relation to abortion services, as well as other issues possibly affected by the right to life of the unborn (such as the provision of medical services to pregnant women). In the final ballot, the Assembly made a series of recommendations for legislation that would significantly liberalise the circumstances in which abortion services would be lawfully available in Ireland.

The Assembly’s recommendations were subsequently considered by a Joint Oireachtas Committee, which recommended that Article 40.3.3° be simply repealed and that, subsequent to repeal (if passed), the Oireachtas should legislate to liberalise abortion law in a manner similar to (but with some important differences) from that proposed by the Assembly. The Attorney General subsequently advised the Government, however, that it would be appropriate to clarify the competence of the Oireachtas to legislate in this domain. In May 2018, the people passed (by a margin of 66% to 34%) a replacement for Article 40.3.3° in the following terms:

Provision may be made by law for the regulation of termination of pregnancy.

A constitutional challenge to this amendment was ultimately rejected in September 2018 and the Government, which does not have the support of a majority in the Oireachtas, has introduced the Health (Regulation of Termination of Pregnancy) Bill 2018, broadly consistent with a draft scheme published before the referendum campaign.

What lessons can be drawn from Ireland’s experience in deliberative democracy? First, the Citizens’ Assembly was able to grapple with exceptionally contentious issues in a way that generated broad respect both within the Assembly and general society. It may be easy in retrospect and from abroad to underestimate how contentious abortion was in Ireland. Few issues over the past 40 years have excited such public passions. This suggests that forums of deliberative democracy can be used to debate deeply contested issues.

Second, the citizens produced a set of recommendations that, whether or not one agreed with them, were unambiguous and capable of implementation. It remains contentious among constitutional lawyers what simple repeal of Article 40.3.3° would have achieved. The Assembly, unlike the later Oireachtas committee, could not offer any explanation of its recommendations: they had to be clear on their face. The citizens grappled with highly complex questions of constitutional law in order to frame recommendations that met this standard, leaving no doubt as to what they wanted to achieve. This was crucial for informing public debate but also attests to the competence of ordinary citizens.

Third, the deliberations of the Assembly provided a singular focus on how Ireland’s abortion laws actually operated, allowing much information and first-hand experience to enter the public debate.

Fourth, prior to the Assembly, many suggested a middle ground solution under which the Constitution would authorise abortion in a wider range of circumstances, such as rape and fatal foetal abnormality. The Assembly’s recommendations were far more radical, granting full competence to the Oireachtas and access to abortion on request during the first 12 weeks of pregnancy. A referendum in similar terms was approved by two thirds of voters and legislation in similar terms has now been introduced by the Government. While many campaigned for change of Ireland’s abortion law, both before and after the Assembly, it is reasonable to conclude that the Assembly played a significant role in shaping that public debate.

Oran Doyle is Associate Professor at the School of Law, Trinity College Dublin, He was also a member of the Expert Advisory Group established to assist the work of the Citizens' Assembly in terms of preparing information and advice.